Something Stolen, Something New, Something Copyright Protected in the EU – A Study of Swedish Compatibility with EU Copyright Law Following the Pelham Judgment

Abstract: Creativity is at the very essence of being human. For as long as we have created, we have done so on the basis of what we have seen previously. This was true for the classical composers of the enlightenment, for the rock stars of the 70s and for the early DJs of Jamaica and New York who, when technology allowed it, started to extract samples from previous music and making their owns tracks with it – thus giving birth to the age of sampling. Up until the European Court of Justice adjudicated the Pelham case, it was uncertain whether small samples were at all considered an infringement, based on EU law. Now we know that, according to the Court’s interpretation of the Infosoc Directive, even a two second sample is enough to constitute a reproduction, at least in part. While the case is yet to be tried on its merits in the German court system, the EU judgment provides some welcome insights into the copyright implications of sampling, in a time where the barriers to sampling are getting lower by the day and the practice is only growing in popularity. With fresh clarity on the EU-side of copyright law, the laws of the member states might need to be looked over. The Swedish system is no exception, with legal features that seem very much to deviate from the EU framework. Future cases will have to reveal the facts but, as this essay will show, there are now reasons to question the compatibility of Swedish copyright law with EU law.